When can someone be admitted to hospital involuntarily?
In Australia a person can only be admitted to hospital for mental health treatment against their will under the Mental Health Act of the state or territory they are in. Broadly, the person must appear to have a mental illness, there must be a serious risk to themselves or others, treatment must be necessary, and there must be no less restrictive option. The wording differs between jurisdictions.
Mental Health Act 2007 (NSW)
Mental Health and Wellbeing Act 2022 (Vic)
Mental Health Act 2016 (Qld)
Mental Health Coordinating Council, Mental Health Rights Manual
The criteria most Acts share
Every Mental Health Act sets out criteria that must all be met before a person can be detained and treated without consent. The first is that the person has, or appears to have, a mental illness as the Act defines it. The second is a risk criterion, usually framed as serious harm to the person or others, or serious deterioration in their health. The third is that treatment is necessary and available. The fourth is that there is no less restrictive way to provide it, such as voluntary admission or community treatment. Several Acts, including those in Queensland, Tasmania and the ACT, also ask whether the person has capacity to make their own treatment decisions.
Who can start the process
The process usually begins when a medical practitioner, or an authorised mental health practitioner, examines the person and forms the view the criteria are met. In most jurisdictions police and paramedics can take a person who appears mentally ill and at serious risk to a hospital for assessment. Once at hospital, the person must be examined within a set time by a psychiatrist or senior doctor before detention can continue. In New South Wales, the Mental Health Act 2007 requires examination by an authorised medical officer within 12 hours of arrival, and at least one examining doctor must be a psychiatrist. In Victoria, the Mental Health and Wellbeing Act 2022 uses an Assessment Order followed, if needed, by a Temporary Treatment Order.
Rights and independent review
Involuntary status is time limited and must be reviewed. Each jurisdiction has an independent tribunal, such as the Mental Health Review Tribunal in New South Wales and Queensland and the Mental Health Tribunal in Victoria, which decides whether a longer order should be made and hears appeals. The person must be given a statement of their rights in a form they can understand, can nominate a support person, and can access legal aid and independent mental health advocacy services. Most Acts also allow a second psychiatric opinion, and require treating teams to consider advance statements or advance care directives the person has made. Where a person no longer meets the criteria, they must be discharged from the order, even if the treating team would prefer they stay.
The Act in each state and territory
The current legislation is the Mental Health Act 2007 in New South Wales, the Mental Health and Wellbeing Act 2022 in Victoria, the Mental Health Act 2016 in Queensland, the Mental Health Act 2014 in Western Australia, the Mental Health Act 2009 in South Australia, the Mental Health Act 2013 in Tasmania, the Mental Health Act 2015 in the ACT and the Mental Health and Related Services Act 1998 in the Northern Territory. Several of these are under review, and the detail on time limits, order names and who can authorise detention changes from time to time. Always check the current Act, and the official guidance from the state health department or chief psychiatrist, for the jurisdiction where the person is being treated.
Ask Mandy this, and thousands more.
Get instant, cited answers on the NDIS, aged care, health and more, in plain English.
Try Ask Mandy